Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR M.F.A. No.1402/2015 (MVC-GEN) BETWEEN:
Sri Sunil Kumar Shetty S/o Shivarama Shetty, Aged about 40 years, R/o “Shiva Kripa” House, Malyadi, Thekkatte Village and Post, Kundapura Taluk, Udupi District-576 201. ... Appellant (By Sri Haveri.S.S, Advocate) AND:
1. Sunil Shetty S/o Vishwanatha Shetty, Aged about 33 years, R/o Near Durgamba Temple, Tadambail House, Surathkal, Mangalore Taluk-575 014.
2. The New India Assurance Co. Ltd., Divisional Office, Udupi-576 101.
Rept. By its Divisional Manager ... Respondents (By Sri E.I. Sanmathi, Advocate for R2; R1 Served) This MFA is filed U/s 173(1) of MV Act against the judgment and award dated 06.11.2014 passed in MVC No.76/2013 on the file of the Senior Civil Judge, Member, Additional MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel for both parties, this matter is taken up for final disposal.
2. Heard the learned counsel for the appellant and learned counsel for respondents and perused the impugned judgment passed in MVC No.76/2013 by the Senior Civil Judge and Additional Motor Vehicle Accident Claims Tribunal, Kundapura.
3. The brief matrix of the appeal are as follows;
That on 18.08.2012 at about 9.40 a.m. when the petitioner was driving the Maruthi Car bearing Reg. No.KA- 20-C-4916 along with other inmates and when he reached near Kajepadvu of Kaikamba Bajpe Road, at that time, a bus bearing Reg. No.KA-19-B-4131 came from the opposite side in a high speed and negligent manner and came to the wrong side of the road and dashed against the petitioner’s car and due to said impact, the petitioner-appellant sustained injuries and car was extensively damaged.
4. Thereafter words, the injured was shifted to Unity Hospital, Mangalore and treatment has been given as an inpatient from 18.08.2012 to 04.09.2012. The injured treated as an inpatient at Chinmayi Hospital, Kundapura from 04.09.2012 to 24.09.2012. After discharge from the hospital, the injured has been taken to follow-up treatment.
5. The learned counsel for the appellant has contended due to rash and negligent driving of driver of the Bus, the accident has taken place.
6. The grounds urged in the appeal, he is that injured was doing building painting work and spare driver and his monthly income was Rs.15,000/- per month. Due to accident, he has suffered grievous injuries to the stomach, forehead, face, chest, both leg and hand, waist and other parts of the body and he has suffered loss of income and future prospects therefore, he has filed claim petition before the Tribunal seeking compensation on various grounds.
7. The notice has been issued on first respondent and he has been placed exparte before the Tribunal. The learned counsel for the respondent sought to dismiss the appeal on the ground that the Tribunal has awarded just and fair compensation.
8. Based on the pleadings of the parties, the issues have been framed by the Tribunal and given its findings. The Tribunal has considered the evidence of the PWs.1 to 5, apart from considering Exs.P.1 to 12. No evidence has been adduced on behalf of respondents and got marked Ex.R1.
9. It is relevant to state that the Maruthi Car belongs to the appellant. Considering the evidence of the appellant, the Tribunal has awarded a total compensation of Rs.4,76,470/- apart from Rs.1,55,838/- towards damages caused to the vehicle. The Tribunal has awarded compensation on the heads of repair of the vehicle, loss of income from the vehicle, loss of inconvenience and discomfort and towing charges and estimation charges and parking charges, pain sufferings, Medical expenses, loss of earning during the laid up period, loss of future earning capacity and loss of amenities.
10. PW.1 is injured who has filed the petition seeking compensation. He has given evidence by reiterating averments made in the claim petition. PW.2 is the Doctor who has given treatment to him. He is a Orthopedic Surgeon, Kundapura and deposed that the injured is suffering from disability of 8% to the right lower limb and 14% disability to his pelvic and he has suffered pain in public symphysis with significant gap and increased gap in the SI joint with positive SIST, stance phase of gait reduced by 60%, 2nd toe movement reduced by 60%, he has squatting difficulty, hip rotation reduced by 30%. PW.3 is a Auditor who has produced Income Tax Returns as per Ex.P.9 which contains which discloses the gross income of the appellant. PW.4 who is the Manager of the New India Assurance Company has not given evidence in respect of the vehicle. The amount awarded towards damages pertaining to vehicle is inadequate and request to be enhanced. The Ex.P.3-Wound Certificate, Ex.P.4-Dissability Certificate and Ex.P.9-Income Tax Returns are produced before the Tribunal for awarding compensation.
11. The learned counsel for the respondents taken me to through the evidence of PW.1 who is injured and filed claim petition. PW.2 is Doctor who has treated the injured. The learned counsel for the respondents submits that compensation awarded by the Tribunal is just and proper.
12. It is strenuously contended by the learned counsel for the appellant that PW.1 is the injured and he has given before the Tribunal that due to accident, he has suffered disability. In order to establish this case in awarding compensation, the disability has been proved as per evidence of PW.2-Doctor. The Tribunal has awarded compensation on lower side. As per his evidence, the injured has sustained fracture of Pelvis. On these grounds, he has sought for enhancement of compensation.
13. It is relevant to state that the injured is a car driver and he has lost his income. The accident has occurred in the year 2012, therefore, notional income has to be taken in the absence any proof of income. The learned counsel for the appellant has produced Ex.P.9-Income Tax Returns. On the basis of that it cannot be said that he is fetching his income at Rs.15,000/- per month. The Tribunal has taken Rs.8,000/- towards income of the appellant. The damage has been caused to the Maruthi Car and sufficient compensation has been awarded towards the same. In view of the evidence of the PW.2-Doctor that the injured has suffered grievous injuries. Hence, I am inclined to award another sum of Rs.25,000/- towards pain and suffering in addition to Rs.50,000/- awarded by the Tribunal. A sum of Rs.35,000/- has been awarded in addition to Rs.15,000/- awarded by the Tribunal towards loss of amities on the basis of the evidence of the PW.2-Doctor. The Tribunal has not awarded any compensation towards attendant charges while the injured was on treatment. Hence, a further sum of Rs.25,000/- is awarded towards attendant charges. The appellant is entitled for Rs.85,000/- towards enhancement of compensation. In all the appellant is entitled total compensation of Rs.5,61,740/-. The enhance amount carries 6% interest from the date of petition till realization.
14. In the result, the appeal is allowed in-part. The appellant is entitled for enhanced compensation of Rs.85,000/- with interest at 6% per annum. The respondent No.2-Insurance Company shall deposit the enhanced amount within six weeks from the date of receipt of certified copy of the order. The registry is directed to send back the LCRs to the Tribunal. The Tribunal is directed to release the amount in favour of the appellant after due identification.
Next >